Free Speech, Public Forums and Government Social Media Accounts

The internet has made communication much easier and infinitely further reaching. With a few strokes of the keyboard, anyone with internet access can express their thoughts or opinions to thousands or even millions of individuals.

Many government officials have opted to use popular social media platforms for this very purpose. Probably the most well-known example of this is President Donald Trump. President Trump frequently voices his thoughts or opinions to millions of Americans through his Twitter account. Likewise, many government officials have decided to take advantage of platforms such as Twitter, Instagram, Facebook, and others to communicate with the populous.

These platforms also allow for feedback from the people. Followers can easily reply to a tweet or comment on a Facebook page. In recent months, however, First Amendment issues have been raised regarding public officials silencing critics through these platforms. President Trump was recently sued for violating certain Twitter users’ rights to freedom of speech.

President Trump had blocked some Twitter users who were critical of him through his Twitter account. Some of these users claimed that they were blocked on the basis of their political views, and that this violated their First Amendment right to freedom of speech. A federal district judge in New York agreed.

In looking at the case, the court first had to determine if Trump’s Twitter account was a private account, or one that is owned or controlled by the government. The First Amendment prevents the government from silencing citizens’ opinions, so the distinction between a private account and a governmental account was a crucial question.

The court looked at the extent to which the President and his staff controlled the content of the tweets; their ability to prevent, through blocking, other Twitter users from accessing the President’s Twitter account timeline and from participating in its interactive space; and the extent to which the President presented his account as a “Presidential account” as opposed to a “personal account.”

The court decided that the account was a governmental account in at least some respects; as it was used to take actions that can be taken only “by the President as President.” The court determined that certain aspects of the Twitter account are controlled by the government including; the content of the tweets, the account’s timeline, and the interactive spaces associated with the tweets.

The court then reasoned that the interactive spaces, meaning the spaces where individuals could reply to tweets or post their own, were the equivalent of a public forum. Public forums receive a very high level of constitutional protection with regard to speech. In order for the government to restrict speech in a public forum, any limitation “must be narrowly drawn to achieve a compelling state interest.” Any restrictions that are based on a person’s viewpoint are strictly prohibited. The court ultimately concluded that the President cannot block Twitter users from participating in the interactive space on the basis of their political views.

Likewise, in June of 2018, a federal district court in California was faced with a similar case. In Andrew McKercher v. Ron Morrison, the plaintiff alleged that the mayor of National City, California, violated his First Amendment rights by blocking the plaintiff from the Mayor’s Facebook page and comments section. The Mayor allegedly deleted comments which were critical and blocked the user who posted the comments.

Similar to the Trump case, the plaintiff alleged that the Mayor’s Facebook page is a “public forum” subject to First Amendment protection since it is used to distribute information about city matters, and because most of the activity on the Mayor’s Facebook page relates to his role as Mayor (as opposed to himself as an individual.) This lawsuit has not yet been decided, but it certainly shows that government officials, including city officials, must be careful when it comes to censuring those who are critical of them on social media.

As we move towards an increasingly online-society, more and more opinions are expressed online. These opinions are, of course, subject to the same protections as any other form of speech under the First Amendment.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

Brandon Morris is an experienced litigation attorney who has worked on a wide variety of cases, including personal injury claims, Texas Deceptive Trade Practices Consumer Protection Act (DTPA) violations, family law, criminal law, and credit collections. Brandon joined the Randle Law Office team early in 2018.